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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Sky In-home Service Ltd [2002] ScotCS 328 (24 December 2002)
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Cite as: [2002] ScotCS 328

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Graham v. Sky In-home Service Ltd [2002] ScotCS 328 (24 December 2002)

OUTER HOUSE, COURT OF SESSION

 

 

OPINION OF LORD BONOMY

in the cause

PAUL GRAHAM (AP)

Pursuer;

against

SKY IN-HOME SERVICE LTD

Defenders:

 

________________

 

Pursuer: Davidson; Drummond Miller, W.S.

Defenders: Lloyd; HBM Sayers

24 December 2002
  • The pursuer claims damages for an injury at work. By agreement of parties this proof was restricted to liability.

  • The pursuer is a satellite television installation engineer with the defenders. He lives in Glasgow. At the time of the events leading to this claim he was working with a colleague installing television satellite systems in the Inverness area. They were living in digs in Inverness. They worked fairly long hours.

  • On 20 January 1998 they started their last job at about 7.30pm. The pursuer did the outside work on the roof. His colleague, Stephen Duffy, dealt with the internal installation. Between half an hour and an hour after they started, the pursuer came to the door of the house looking for Stephen Duffy's help. He had hurt his ankle. He needed help to gather up his equipment, particularly the ladder he had been using, and return the equipment to the van.

  • The case which the pursuer offered to prove was that, while he was in the course of descending from the roof by means of a three-piece extending ladder and was still a significant distance from the ground, the top of the ladder slipped sideways causing him to fall. On record he averred that he was approximately 5 or 6 rungs from the foot of the ladder when this happened. In evidence he said that he was approaching the foot of the ladder but was far enough up the ladder to end up upside down after his foot slipped between rungs. It was further the pursuer's case that it was in the course of that incident that he sustained a fracture in the lower third of both the tibia and fibula of his left leg. That was a severe injury which proved difficult to treat.

  • The defenders' case was that the pursuer did not sustain the fracture in the course of that incident. They made reference in Answer 2 to the account recorded at Raigmore Hospital, where the pursuer was taken in the early hours of the following morning, to the effect that he sustained the injury when attempting to step off the pavement. In admissions added on the morning of the proof the pursuer accepted that he had been found by police officers lying in the roadway in the early hours of 21 January and had given staff at Raigmore Hospital an account of sustaining the injury while stepping off the pavement.

  • Mr Lloyd, counsel for the defenders, accepted that the defenders had exposed the pursuer to risk of injury through fault and through breach of the Construction (Health, Safety and Welfare) Regulations 1996. That meant that the defenders would be liable to the pursuer if he proved that he fell because the ladder moved. The defenders also accepted that the pursuer had sustained some injury. There was, however, a question over the extent of that injury.

  • It followed from the defenders' concession on liability that the crucial question for the pursuer to establish was that he fell because the ladder moved as he was descending. Proof of that depends essentially on the evidence of the pursuer. No one observed his descent. He said that, as he descended, he felt the ladder jerk and the top move left along the edge of the roof against which it was leaning. There is, however, some support for his account in the resultant position of the ladder. Both the pursuer and Stephen Duffy explained that the ladder was lying at an angle of about 45 degrees to the left of the position in which it had been placed for the pursuer to ascend. Stephen Duffy had footed the ladder at that stage. However, that piece of circumstantial evidence does not take the pursuer's case much beyond his own evidence. The pursuer's very fall from the ladder might well have caused the movement. He was descending with his right hand and arm fully engaged in carrying equipment and his left hand holding each rung. He explained that he fell when his hand was between rungs. The crucial question for me was whether I accepted his account of the ladder moving.

  • There was a great deal of other evidence which had a bearing on the truth and accuracy of the pursuer's account. Mr Lloyd pointed to three significant factors in the evidence which, he said, cast such doubt upon the pursuer's account as to make it unacceptable.

  • He pointed first of all to the evidence of the pursuer that, when he had explained to Stephen Duffy immediately after the accident what had happened, he said that he had fallen "off the bottom of the ladder". That was consistent with a statement given by Stephen Duffy in March 1988 in which he said that the pursuer had told him that he had fallen "from the bottom rung" of the ladder. Stephen Duffy said in evidence that he had given an accurate account in that statement. His recollection in evidence was that the pursuer had told him that he had fallen from the middle of the ladder. The significance of this is that in evidence the pursuer described his accident in different and very dramatic terms, which involved his left foot slipping between rungs, and his body falling backwards and bumping against the lower part of the ladder, at which point his foot came free and he fell to the ground using his arm to break his fall. The two accounts are quite inconsistent. Neither the pursuer nor Stephen Duffy suggested that there was any reason for them not to give an accurate account in 1998. In my opinion the one given at the time is much more likely to be the accurate one.

  • The dramatic nature of the pursuer's account of the incident was the starting point for the defenders' submission on the second factor, viz that it is inconceivable that the pursuer would not mention that accident to hospital staff treating him on his admission in the early hours of the following morning. Not only was his description of the accident dramatic, but the injury he said that he sustained had an instantly disabling and severely painful impact upon him. He described the pain as "excruciating" and "extremely sore" a number of times. He was only able to hobble. The pain and difficulty in moving persisted throughout the evening until his final collapse. The pursuer maintained that he thought that he had simply sprained his ankle, as he had on previous occasions playing football. He was unable to drive the van. At his digs he had great difficulty getting up and down stairs. When his meal was presented to him he could not eat it because he felt sick. He went upstairs again and lay on the bed for about half an hour with his leg supported on a pillow. Stephen Duffy came to his room and asked if he wanted to go out. He agreed to go because he felt better. The went by taxi to a Chinese restaurant so that he could get something to eat. By this time, a little over two hours after the incident at the ladder, he had taken six proprietary painkilling tablets (three lots of two) and two anti-inflammatory tablets, a remarkable dosage. Having been unable to do more than pick at his beef curry, he left the Chinese restaurant with Stephen Duffy and they walked somewhere over a 100 metres to a pub. At around 12.30am they left the pub and walked a 100 metres or so in the direction of the Chinese restaurant to pick up a taxi. The pursuer had drunk a minimum of three, and a maximum of five, pints of lager tops since the incident. It was as they proceeded to cross the road to avoid a group of youths coming towards them, about whom they were slightly apprehensive, that the pursuer's leg gave way beneath him and he fell over in the gutter unable to move. He lay there for some time before first the police and then the ambulance service attended.

  • The first person to note anything of the history of his injury was the paramedic, Andrew Martin Fuller. He noted on a Patient Report form what he found out from the pursuer as follows: "Slipped and fell off pavement. Heard ankle 'crack'". Mr Fuller did not note any reference to an injury sustained at work earlier. He said that, if that had been mentioned, he would have noted it. On the form there was a box to tick if the accident occurred at "work".

  • The senior house officer on duty in the Accident and Emergency Department at Raigmore Hospital was Dr Antonia Reed. Her practice was to ask patients the general question, "What happened?". The account noted by Dr Reed was that the pursuer had fallen of the pavement.

  • In view of the severity of the injury Dr Reed called for assistance from Dr Niall Munro, senior house officer in orthopaedics and trauma. He took as detailed a history as he could from the pursuer, because that was important in determining diagnosis and treatment. In addition to asking what had happened, he asked the pursuer if he had ever injured his left ankle or limb before. The pursuer made no reference to the incident earlier in the day. The pursuer confined his account of the cause of his injury to events after leaving the pub, and in particular said that his foot had been half on and half off the pavement when it happened.

  • The pursuer's attempts to explain his failure to make any reference to the earlier incident were unconvincing. His main position was that he had no recollection of being asked how he came by his injury. He also suggested that his condition was such that he could not be relied upon to give an accurate account. He described himself as "incoherent", "in shock", "asleep", and "on a drip". However, that explanation flew in the face of the fairly accurate detail noted by Dr Munro of the reason for the pursuer's presence in Inverness and other information about his previous medical history. He also maintained that he would not have described what happened as falling of the pavement, or having his foot half on and half off the pavement, because that is not what happened. He had simply put his foot down deliberately and it had given way beneath him. He also maintained that no one ever asked him whether he had had an accident earlier that day, as if to suggest that the blame really lay with the medical staff for not asking the right questions. Although Mr Lloyd's cross-examination was fairly gentle, the pursuer's reaction was truculent at times. The pursuer did not seriously suggest that he had mentioned the earlier incident and that those noting the history of his injury had not recorded that. He said that any account he gave of the earlier incident was much later during his stay in hospital.

  • I found it surprising that, if the pursuer had suffered the fall at work which he described in evidence, he did not mention that at any stage to those interested in obtaining an accurate history of his injury. On the other hand, that he did not do so is consistent with the account that Stephen Duffy gave that, when they went into the town to go to the Chinese restaurant and the pub, he did not think "the pain was that bad". The material in this chapter points to any injuries sustained at work being of a minor nature.

  • The third factor was the pursuer's account of how he climbed the stairs on two occasions at his digs. Both in examination-in-chief and in cross-examination he described how he climbed, using the banister for support, by placing his left leg first onto each step before pulling his right foot onto the same step. That movement requires weight and pressure to be put on the left leg in a way which would not have happened had he led with his right leg. Both consultant orthopaedic surgeons who gave evidence, Andrew Kinninmonth and Colin Mainds, expressed surprise that the pursuer should climb stairs in this way. Both were, however, quick to point out that patients regularly surprised them by the extent to which they are able to get around on broken limbs. As a result both expressed their views more on the basis of common sense than particular medical experience. That common sense dictates that, as Mr Kinninmonth pointed out, it is highly unlikely that any one would lead with the left leg for more than one step, since it would be immediately obvious that putting the main pressure on the sound leg would reduce the pain. The pursuer claims to have climbed the stairs leading with his left leg when the pain was excruciating. To do so in that situation makes no sense. His evidence is much more consistent with his having sustained only a minor injury by that stage,

  • Mr Davidson, counsel for the pursuer, aware of the difficulties presented by these three features of the case, addressed each one separately.

  • He regarded his main challenge as coming from the absence of reference to the earlier incident in the records of Raigmore Hospital. He submitted that medical records are notoriously unreliable because of the circumstances in which they are completed, often involving distress, pain, the consumption of alcohol, doctors under pressure and patients' lack of communication skills. The difficulty in the way of that submission in this case, however, is the absence of anything to suggest that these records are inaccurate as to the pursuer's account of how he sustained his injury. I was particularly impressed by the evidence of Mr Niall Munro, who had made a fairly detailed note and who struck me as a very careful and thorough surgeon. He also had some direct recollection of the pursuer and did not rely exclusively on his records. I am in no doubt that the pursuer did not refer to the earlier incident when attended by the paramedic or on his admission to hospital.

  • Mr Davidson dealt next with the inconsistency between the account of the fall in evidence and the account he gave at the time to Stephen Duffy. Just as the pursuer could not be expected to say precisely how his leg came to be broken as he fell, he also could not be expected to give precise heights and distances ???????? invited me not to adopt an artificial "freeze frame" approach to the evaluation of the pursuer's evidence about events which occurred quickly and unsatisfactorily. The important point was that an injury was immediately obvious because his ankle was swollen and was seen to be swollen shortly afterwards by Stephen Duffy. Mr Duffy corroborated all that the pursuer said about events after he came to the door of the house to attract his attention. I entirely accept that it would be wrong to adopt a too analytical approach to the pursuer's evidence of what happened at the ladder. His description of his foot slipping between rungs, falling backwards, and the foot becoming free as he turned left and broke his fall with his hand is consistent with the fractures sustained, if the foot was trapped even briefly as the body twisted, thus applying torsional force to the leg. Mr Davidson was able to rely on the further point that both consultant orthopaedic surgeons agreed that, from the purely medical point of view, it was easier to explain how the fractures occurred by reference to the sort of accident the pursuer recounted at the ladder than by reference to stepping off the kerb. The latter was a possible, but much less likely, cause. However, these features, highlighted in Mr Davidson's submissions, do not begin to provide an explanation for the pursuer giving Stephen Duffy the impression that he fell from the bottom of the ladder, which is sufficient to account for there being signs of injury to his ankle area shortly afterwards.

  • Mr Davidson dealt finally with the manner in which the pursuer climbed the stairs. He acknowledged that he did so in a "bizarre fashion" which could not be explained. However he emphasised the evidence of both surgeons that patients suffering similar fractures could manage to hobble around, albeit in great pain, as long as the fractures were not displaced. I find that an unconvincing explanation for the pursuer's account of how he climbed the stairs. It is much more likely that he has quite simply exaggerated the extent of the injury he suffered at work.

  • I found Mr Lloyd's submissions compelling and convincing. Having regard to the three material factors that he relied upon, I am not prepared to accept that the pursuer gave a truthful and accurate account of the accident. I do not accept his evidence that the ladder slipped causing him to fall nor that he fell when he was a significant distance from the bottom. Since that is the case which the pursuer must prove, he has failed and the defenders must be assoilzied. I shall therefore sustain the second and third pleas-in-law for the defenders, repel the pursuer's pleas, and pronounce decree of absolvitor.

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    URL: http://www.bailii.org/scot/cases/ScotCS/2002/328.html